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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, January 24, 2014

Court of Appeals strikes down speech requirements for abortion-alternative facilities

The abortion wars rarely reach the Second Circuit, but this one does. The Court of Appeals rules on the constitutionality of a New York City law that regulates pregnancy crisis centers, known for trying to counsel woman not to have an abortion. A portion of that law that regulates the centers' speech violates the First Amendment

(1) whether or not they have a licensed medical provider on staff (the “Status Disclosure”); (2) that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”); and (3) whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”).

The district court struck down these three disclosure requirements. After deliberating on this case for more than a year, the Court of Appeals (Pooler, Lohier and Wesley [dissenting in part]) says the Government Message and Services Disclosure violate the First Amendment's prohibition against compelled speech. The Status Disclosure requirement is legal.

1. On the Status Disclosure requiring these facilities to disclose whether they have a licensed medical provider on staff, this survives strict, or close, scrutiny under the First Amendment. This kind of neutral "speech" is a narrowly-tailored effort to ensures that women know that a particular facility has a licensed professional on board. This ensures that women have prompt access to the services they seek.

2. On the Services Disclosure requiring these facilities to affirmatively state whether they provide referrals for abortion and other services, this violates the First Amendment. This speech requirement is made in the context of a public debate on the morality of efficacy of contraception and abortion, for which many of these facilities provide alternatives. As Judge Pooler sees it, "The Services Disclosure will change the way in which a pregnancy services center, if it so chooses, discusses the issues of prenatal care, emergency contraception, and abortion. The centers must be free to formulate their own address. Because it mandates discussion of controversial political topics, the Services Disclosure differs from the 'brief, bland, and non‐pejorative disclosure' required by the Status Disclosure." The government is essentially telling these facilities what to say, and that message may conflict with the facilities' own mission.

3. On the Government Message that requires these facilities to disclose that the City encourages women to consult with a licensed provider, this also constitutes compelled speech in violation of the First Amendment. The City can accomplish its objective in other ways: it can do so through an advertising campaign rather than require these providers to convey that message. As it is also a matter of public debate, the Court says, whether women should see a doctor in this context, the government is forcing these facilities to take sides on this issue, contrary to the First Amendment.

Judge Wesley dissents in part, concluding that the entire statute is too vague in defining "pregnancy services center." He writes that the law gives the City too much discretion in determining that a facility has the "appearance of a licensed medical facility" that would be covered under the law. Since the framework encourages arbitrary enforcement, it violates the First Amendment. For this reason, he writes, "Local Law 17 is a bureaucrat’s dream. It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity."